Author: US Immigration Advisor

Investor Visa Application Price Increase

Guide to Taking a Loan For EB5 Visa Investment or E2 Visa Investment

US Immigration Advisor

Can I Use a Loan to Fund an EB5 Investor Visa Application or an E2 Investor Visa Application?

Can a loan be used for an EB5 visa? Can a secured loan be used for an E2 investor visa?

Unsecured and secured loans can both be used for investor visa purposes.Yes.  Loans are one of the authorized forms of financing that an investor may employ. Investors commonly use loans to fund EB-5 and E2 investments.

You can secure loans or leave them unsecured. Home Equity Lines of Credit (HELOC) can allow homeowners easy access to EB5 financing.  

You must file documentation that evidences the bona fides of the loan with USCIS. This includes: (1) the lender’s source of funding; and (2) the method by which money was transferred from the lender to the EB-5 investor.

Investor Visa Borrowing

In 2022 the RIA raised the minimum investment amount for EB5 from $500,000 to $800,000.  As a result, more people wanted to borrow money to finance EB5 and E2 investor visas.

EB-5 Visa and E2 Visa Loans

An EB5 Visa USA loan refers to a loan that’s taken by the petitioner to fund part or all their EB5 investor visa application. As E2 visas are also investor visas the same principals generally apply for financing an E2 investor visa.

Four Sources of EB5 Loans

There are generally four sources of E2 and Eb5 qualified loans: 1) private loans; 2) institutional loans, including bank loans; 3) loans from an EB5 Regional Centers; and 4) seller financing available in both E2 and EB5 Direct cases.

Looking for an Investor Visa Lender

Many Eb5 investors borrow money or take gifts from family. Investors can also borrow money from a bank or financial institution by using their home or assets as Collateral. More recently a number of Regional Centers have started to finance Eb5 transactions. For Direct EB5 investors and E2 investment visa investors purchasing a business seller financing may also be available.

Secured and Unsecured EB5 Loans

All loans are either secured by Collateral or unsecured.  The investor needs to secure a secured loan with their personal property (Collateral).  An unsecured loan does not require any Collateral.

Most investor visa lenders require collateral to secured loans used for EB5 funding, unsecured loans are hard to find.

What is Collateral for a Loan?

“Collateral” refers to the assets used to secure a secured loan.  If the borrower does not repay the loan as agreed, the lender will sell the Collateral to pay the loan.

EB-5 Visa Loan Requirements and E2 Visa Secured Loan Requirements

There are several requirements for a secured loan to be qualified as EB-5 investment funds. These requirements include:

The loan must be secured by the investor’s assets or property. The EB5 investor can only use personal property (Collateral) they own to secure an EB5 loan. EB5 qualifying personal property (Collateral) can include: Stocks and other securities, gold and jewelry, real estate and other assets.

Source of Funds for Collateral. An EB5 investor must prove how the Collateral securing an EB5 Loan was purchased. The Eb5 investor must also prove how the funds used to purchase the Collateral were lawfully earned.

Value of Collateral. The value of the investor’s Collateral must be equal to or more than the loan amount.

Perfection of Security Interest and Mortgages. The lender’s security interest in the Collateral must be perfected. In simple language that means that the mortgage or other loan used to secure real estate must be properly registered as required by law.

The investor must be the principal borrower of the loan and must be fully responsible for its repayment. The loan must be under the investor’s name and they must be solely liable for its repayment.

Investor is “At Risk”. An investor places their personal assets “at risk” as Collateral in a secured EB5 loan or E2 loan. The investor clearly meets the “at risk” requirement.

Purposes of Loan.  For the EB5 visa program the capital investment funded by the EB5 loan must placed “at risk” and create ten jobs. Investors accomplish this by investing the loan proceeds in an EB-5 project.

Eb5 projects require an investment of USD 800,000 or USD 1,050,00 and must generate at least 10 new direct and indirect jobs.

Mortgages and Remortgages

Investors may also remortgage or refinance using a mortgage with a fixed or variable interest rate. A bank can quickly determine if a house or a condominium is qualified for a cash-out refinance. The loan can be quickly arranged with the proceeds reaching the investor’s account within 45 days, subject to the appraisal and the lending review processes.

Land-Based Loan Transactions

If you are going to use a bank loan secured by land, you will need to provide copies of all relevant loan documents.  In addition, you must prove the source of funds for the original land purchase.  The loan must also comply with the laws of the country where the land is located.

E2 Visa and EB-5 Visa Un-Secured Loan Advantages

An unsecured loan has a few advantages:

No Source of Funds. A loan from a recognized financial institution has no source of funds requirement. As an unsecured loan has no Collateral there no requirement to trace the funds used to purchase Collateral. An unsecured loan which is not from a recognized financial institution will require proof of how the lender earned the funds to make the loan.

Assets not at Risk. Because the loan is unsecured the investor’s assets are not immediately placed at risk in the event the loan is not re-paid.

Investor is “At Risk” for EB5 Purposes. USCIS traditionally took the view that investors using unsecured loans to finance EB5 investments were not “at risk” as required by EB5 law. As a result of a court case decided in October 2020 the position has changed. Unsecured loans can now be used to finance EB5 investments. As the court decision is fairly recent there is little data on how the USCIS is deciding cases where foreign investors are relying on unsecured loans.

EB-5 Visa Loan Repayment Terms

Depending on the circumstances of the case it may best to with until Form I-526 is approved before paying off an EB5 financing loan.

The reason for this is USCIS may ask to see proof that the loan is still outstanding at the time the I526 is adjudicated. If the loan has been paid off USCIS may then ask for proof of how the funds used to pay off the loan were earned. This may raise complications concerning the source of funds at the time the case was originally filed.

Short-Term Loans

USCIS has not stipulated any repayment requirements for short-term loans. It is however advisable to repay loans only following the approval of your I-526 petition.

If you intend to use a loan for your EB5 funding, you will need to produce documents confirming the lawful source of the lender’s funds and the lawful source of the assets used as collateral for the loan. The USCIS may request proof of the legal source of cash to repay the loan if the loan is repaid before your I-526 petition is approved, but you won’t need to show proof of cash once such petition is approved.

Long-Term Loans

Just like in short-term loans, the USCIS has not issued requirements for repaying long-term loans. There’s no indication that longer-term loans will cause your investment to lose its status as an “at-risk” investment. The EB-5 investor program requires investors to place their investment “at risk” for a period of two years. law Capital can neither be managed or governed by redemption agreements insuring loss nor by contractual promises to repay funds. For capital to be “at risk”, there must be a chance that it will be lost.

Loan Documentation in Investor Visa Cases

A loan taken to fund an E2 or EB5 investor visa case will have certain documentation. The US Government, USCIS and the US State Department will all want to see:

  • The Loan Agreement,
  • A Promissory Note (sometimes combined with the Loan Agreement into a single document)
  • A Security Agreement which secures the loan with the Collateral (for secured loans only).

How to Negotiate Eb5 Financing: Key Terms to Watch for in an Eb5 Loan

Eb5 investors would be well advised to retain an experienced lending lawyer to review loan documentation. Key issues to look at in the loan documents include but are not limited to:

  • Whether or not there is an early repayment penalty.
  • Purpose clause. Make sure that the loan agreement has a purpose clause that includes EB5 as a permissible use of the funds. A clause that states funds can be used “for any lawful purpose” is proper.
  • The amount and duration of the loan, and the procedure for disbursement.
  • How interest will be paid. Monthly, quarterly, or annual terms of the principal and accrued interest.
  • Full fees and costs, including any origination points or other fees.
  • Check that is it lawful to borrow money secured by local property. And remit the proceeds of that loan abroad.

Loan Interest Rate

Loan interest is the amount that a lender charges to a borrower for lending the borrower the money. To calculate loan interest, multiply the interest rate by the outstanding loan balance.  Market conditions and credit standards determine interest rates for EB5 Visa loans.

A wide variety of loan products on the market that meet EB5 needs. These can include 30 and 15 year fixed repayment terms using various fixed and adjustable interest rates.

At the time of writing, an investor can borrow $800,000 at a 5% interest rate by using a $1 million home as collateral.   You can then apply the USD 800,000 loan proceeds towards the required EB-5 investment and the associated fees.

Lending Rates from Financial Institutions

There are a lot of factors that can affect lending rates, including a client’s banking relationship and the liquidity and risk level of the asset among others. The lending rate can depend also on a bank’s own cost of capital or external factors outside its control.

Loans from Friends and Family Members

EB-5 immigrant investors can obtain a loan from a financial institution, a friend, or a family member. If you don’t want to deal with banks, you can borrow money from a friend or family member instead.  When financing EB5 using a loan from a friend or family member the lender will have to prove how they lawfully earned the funds.

Acceptable kinds of collaterals for an EB-5 Visa loan

USCIS allows EB-5 investors to use any form of collateral to secure their loan as long as the loan is secured by the investor’s assets. Property holdings, real estate, cash, and equipment are some examples of acceptable kinds of personal assets that investors can use as collaterals.

Here at Davies & Associates, our pool of expert immigration services can help you ensure that you comply with EB-5 Visa loan requirements and that you have the best chance of being granted an EB-5 Visa.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

E2 Visa Study cases

U.S. State Department Issues Near Record Level Non-Immigrant Visas

US Immigration Advisor

On November 28, 2023, the U.S. State Department shared a press release highlighting the agency’s operations and the significant numbers of different types of visas issued in the last fiscal year. 

From October 2022 through September 2023, the State Department issued a near record level of non-immigrant visas – more than 10 million globally – 8 million visitor visas for business and tourism and more than 600,000 F-1 student visas (embassy and consulates in India issued an all-time record of more than 140,000 student visas).  590,000 visas were issued to high-skilled workers and executives to work in some critical fields, ranging from emerging technology to healthcare, and nearly 365,000 to airline and shipping crew members.

The State Department attributes these achievements to innovative solutions, such as expanding the interview provision that allows certain visa applicants to renew their visas without the need for an interview appointment at the consulate or embassy.    

The interview waiver flexibility is set to expire on December 31, 2023.   There is no announcement as yet from the administration regarding its continuity. 

Visa Operations Bring Record Achievements Worldwide – United States Department of State 

We at D&A are monitoring the situation and will provide updates as and when available. 

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Visa Application

E2 Visa Dual Intent: Misconception or Truth?

US Immigration Advisor

Introduction

The United States has always been known as the land of the free and the land of opportunity. It is considered the frontrunner in the world in terms of economic growth, and that’s why a lot of people are trying to gain permanent residency in the ‘Land of the Free’.

While there are several paths to attain permanent residency, there are challenges and obstacles like long processing times, quota limitations, retrogression, among others. In this regard, it makes sense to consider nonimmigrant visa options that will allow you to enter the U.S. sooner to pursue your business or employment goals and at the same time explore options for permanent residency. The E-2 visa is one of the non-immigrant visa classification that is not subject to quota limitations, retrogression or excessively long processing times. In fact, the E-2 application does not need to be filed and approved by USCIS. The applicant files the application directly with the Embassy or Consulate.

Is E2 Visa Dual Intent: We Will Explain Why It Isn’t

There are non-immigrant visas which allow foreign nationals to be temporarily and lawfully present in the U.S. but still let them retain their right to become a legal permanent resident. However, it is a misconception to categorise an E2 visa as a dual intent visa. Generally, the U.S. Embassy or Consulate will ask treaty investors to simply sign a declaration that they plan to return to their home country once their visa expires.

Moreover, the consular officers are instructed by the Foreign Affairs Manual (FAM) that an applicant must prove that they intend to depart the U.S. once their visa expires and not to stay to adjust status or otherwise remain in the country.

Please take note that consular processing is different from filing a petition with the United States Citizenship and Immigration Services (USCIS). Due process doesn’t exist in consular processing, and petitions may be outright denied for the existence of immigrant intent. If you have an outstanding or previously approved immigrant petition, you should take note that immigrant intent is assessed when you renew or enter the U.S. and these petitions can be used as an indication of immigrant intent.

If you have a pending immigrant visa petition, the consular officer may ask you about it during your E2 interview and would consider this for the approval of your visa. They may still approve your petition, however, if you sufficiently prove that you’re not planning to adjust your status in the U.S.

What is an E-2 Visa?

An E-2 Work Visa is a type of nonimmigrant visa that allows nationals from E-2 treaty countries to make a substantial investment in a U.S. enterprise or business. The validity of the E-2 visa depends on reciprocity schedule. For most countries, the reciprocity schedule is 5 years. When one enters on a valid E-2 visa, he or she will be given a 2-year period of authorized stay. Since it is a nonimmigrant visa, the applicant must overcome the presumption of immigrant intent. He or she must demonstrate ties to the home country.

Proving Non-Immigrant Intent

All applicants for a nonimmigrant visa are presumed to intend to immigrate, which means that they must demonstrate that they do not intend to immigrate to the U.S. to get the visa. Most applicants find it hard to qualify for a non-immigrant status, such as a visitor visa, if there is any indication of intent to seek permanent residence in the U.S. 

Before a visa is issued, foreign nationals must prove to a consular officer that they meet the standards required by the visa they are applying for. The consular officers are allowed to presume that every applicant for admission intends to stay in the U.S. for a permanent time and the goal of the applicant is to overcome that presumption. The burden is on the applicant to convince the consular officer that he or she will depart once the trip has concluded or once your visa has expired. In making the decision, the consular officer will consider family, social and economic ties to the home country. 

Requirements to qualify for E-2 visa

  • You have to be a national of an E-2 treaty country to obtain an E-2 Visa.
  • You have to make an irrevocable investment.
  • Your E-2 company must be currently operational or at least imminently operational.
  • Your investment must be substantial.
  • Your E-2 company must be more than a marginal or one solely for earning a living.
  • You must be able to develop and direct the Company.
  • You must intend to depart the United States when your E-2 status terminates.

Ways to Qualify for E-2 Visa

There are different ways to qualify for E-2 Treaty Investor Visa.

Establish and operate your own start-up company.

If you are establishing your own start up company,  you need to set up the company. You can choose to set up your E-2 business as an LLC or corporation. You must own and control at least 50% of the E-2 company. You will need to take the necessary steps to make the company operational or at least imminently operational. You need to open a bank account for your company and make the necessary business expenditures (rental payments for office space, purchase of equipment, furniture or inventory, marketing fees, etc).  You must spend a significant portion of your funds on the initial business expenses and place the unspent funds in an escrow account for future business expenses of the company. To qualify for E-2 visa, you must put your funds be at risk by irrevocably committing them to the E-2 enterprise.

Buy and continue to operate an existing business.

If you are buying an existing business, you must already have a signed purchase agreement and paid the purchase price. If the seller agrees, you can opt to put the purchase price in an escrow account subject to release to the seller upon approval of your E-2 application.

Buy and operate a franchise.

If you intend to operate a franchise, you must already already signed the franchise agreement and paid the fees. If the franchisor agrees, you can also put the franchise and other related fees in an escrow account subject to release to the seller upon approval of your E-2 application.

Aside from qualifying as an E-2 Treaty Investor, you may also be eligible to be an E-2 Treaty Employee. If you know an individual (or entity) from an E-2 treaty country  and you have the same nationality, you may be classified as an E-2 Treaty Employee if you will occupy an executive, supervisory or specialized employee position.

E-2 Visa Consular Application Process

Before applying for an E-2 Visa, you need to make sure that it’s the best option for your immigration goals. You can always consult with an immigration attorney to determine if an E-2 Visa is perfect for your situation and circumstances.

Every Embassy or Consulate has their own specific guidelines in submitting an E-2 visa application. You have to make sure that you are following the guidelines to avoid potential delays. An E-2 application requires the submission of an online DS-160 application and an E-2 application package with all the supporting documentation. The Embassy or Consulate usually reviews the application before scheduling an interview. The review and processing times at every Embassy or Consulate vary. It could take 2 to 4 weeks or sometimes 2 to 4 months depending on the caseload of the Embassy or Consulate.

E-2 Visa Consular Processing Costs

  • Form DS-160 (Online Nonimmigrant Visa Application) – $315
  • Visa issuance fees or reciprocity fees depending on your home country

Our guide on the cost of E-2 visa gives you more information on the investment you must prepare to avail of an E-2 visa.

Change of Status to E-2 Process

If you are currently in the U.S. on a valid nonimmigrant visa like B-1/B-2, you may be eligible to apply to change status to E-2 by filing a petition with USCIS. You will have to demonstrate that you meet each and every requirement for E-2 classification. If approved, you will get a new I-94 with an extension of additional two years of authorized stay in the U.S. to develop and direct your E-2 company.

E-2 Change of Status Costs

  • Form I-129 (Petition for Nonimmigrant Worker) filing fee – $460
  • Form I-907 (Request for Premium Processing) filing fee – $2,500 (optional)

Is it possible to transition to become a permanent resident from E-2 status?

While the E-2 visa is a nonimmigrant visa, there are still ways to pursue permanent residency. 

  1. You may transition from E-2 to EB-5 classification when you meet the investment and employment creation requirements.
  2. You or your spouse may qualify for other employment-based immigrant petition. 
  3. You may qualify for a family-based petition as an immediate relative of a U.S. citizen.

If I have a pending immigrant petition, do I still qualify for E-2 visa?

A pending immigrant petition does not automatically disqualify you for E-2 nonimmigrant visa. You just need to prove that you have no plans of permanently immigrating at the time of the filing of your application. You have to be ready to prove your ties to your home country.

What is a dual intent doctrine in U.S. immigration law?

U.S. visas are either classified as immigrant and nonimmigrant. In general, to qualify for nonimmigrant visa, one has to prove that he or she has no intention to permanently immigrate to the U.S. However, based on the dual intent doctrine, certain nonimmigrant visa holders are allowed to be present temporarily in the U.S. with the intention of possibly immigrating to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to enter the U.S. as a nonimmigrant but retains the option to apply for permanent residence in the future. Some visas inherently obtain the possibility that the individual can become a permanent resident in the U.S.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign national to work in a specialty occupation. A specialty occupation can include jobs in the sciences, engineering, technology, math, and medicine. Take note that an employer must go through a labor certification process before hiring a foreigner for a specific job occupation. Due to the huge demand for this visa, U.S. employers must register for a lottery unless they are considered exempt. This visa has an initial 3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below 21 to the U.S. They are also eligible to adjust status or apply for immigrant visa based on an approved petition for permanent residency for the H-1B visa holder.

L-1 Visa

The L-1 Visa is a non-immigrant visa that allows a manager or executive of a foreign company to be transferred to a parent, subsidiary, affiliate or branch in the U.S. to perform managerial or executive functions.

L-1 visa holders may be accompanied by spouse and children below 21 on L-2 visas. They are also eligible to adjust status or apply for immigrant visa at an Embassy or Consulate based on an approved employment based petition for the L-1 visa holder.

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign fiancé who enters the U.S. and marries a U.S. citizen. K-1 Visa applicants enter the country as nonimmigrants but it is clear that they have the intent to marry a U.S. citizen and generally, immigrate to the U.S. The holder of this visa must be married within 90 days from their arrival in the U.S. They are also not allowed to work legally in the U.S., so they need to apply for a work permit or adjustment of status after their marriage to work legally.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allows unmarried children under the age of 21 years of K-1 Visa holders to enter the U.S. It is approved at the same time as that of their parent’s K-1 Visa, and should be submitted not later than a year after their parent’s K-1 Visa was issued.

K-3 Visa

Dual intent visas like K-3 Visa is used by the spouse of a U.S. citizen to enter the country while waiting for their pending Form I-130 (Petition for Alien Relative) filed by their U.S. citizen spouse listing them as a beneficiary. They’re allowed to work in the U.S. without securing an Employment Authorization Document (EAD).

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children under the age of 21 years of a K-3 Visa holder to enter the U.S. K-4 Visa holders are eligible to apply for work in the U.S., and their visa automatically expires as soon as they turn 21 years old.

Green Card Application

Generally, the first stage in applying for permanent residence in the U.S. starts with your sponsor, such as qualifying U.S. lawful permanent residents or organizations, to file an immigrant visa petition on your behalf. If you are currently in the U.S. on a valid nonimmigrant status, you may be able to adjust status to become a permanent resident within the U.S. Otherwise, you will have to go through consular processing to obtain your visa. It should be noted that there are a lot of factors that determine your eligibility to adjust status or apply for an immigrant visa at an Embassy or Consulate. You have to make sure that you speak with a U.S. immigration attorney to be guided on the requirements and the process.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

Investor Visa Application Price Increase

US to begin Domestic Visa Renewal for H-1B Workers

US Immigration Advisor

In a welcome development, certain H-1B employees will now be able to renew their visa stamp in the United States, without having to apply at a US consulate in their home country or elsewhere.   

The stateside visa renewal pilot program of the US State Department is set to take effect in January, as reported.  This is in a bid to cut down long appointment wait times at US consulates abroad.  Under the pilot program, the grant of H-1B visas will be limited to 20,000 initially.  Details on this are expected to be published in the Federal Register in December that will outline instructions and eligibility criteria, among other things.  

Additionally, the State Department is considering extending “interview waivers” for certain nonimmigrant visa categories.  The Trump administration had authorized consular officers to grant in-person interview waivers for certain visa categories during COVID (such as the L, H-1, O), which authorization was extended several times by the current administration, and is now set to expire in December of this year.   

Reportedly, the Deputy Assistant Secretary for Consular Affairs Julie Stufft, remarked, “The legal authority for renewing the waivers is clear, but it requires concurrence from the Department of Homeland Security. The agencies are having a “robust conversation” on what is and isn’t working at ports of entry…Everyone is very focused on making sure we resolve this issue by the end of the year.” 

A significant number of non immigrant visas including the H-1B and L-1 were issued without an in person interview.  In such cases, candidates submit their applications via the Dropbox process. 

About the H-1B

The H-1B is an employer-sponsored non-immigrant visa classification that allows certain foreign workers to work in the US in a specialty occupation. “Specialty occupation” means a position that requires application of a specialized field of study and one that requires at least a bachelor’s degree as a minimum entry requirement in that specialty.  The H-1B cap or H-1B quota is the numerical limit of H-1B visas allowed in a fiscal year (October 1 to September 30). Currently, the regular cap for H-1B visas (requiring a bachelor’s degree) is set at 65,000.  There is an additional H-1B annual Master’s cap quota set at 20,000 (requiring at least a US master’s or higher degree). 

Source: H-1B Worker Domestic Visa Renewal Pilot to Start in January (1) (bloomberglaw.com)

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Visa Application

Dual Intent Visa Explained: The Bridge to Immigration

US Immigration Advisor

What is a Dual Intent Visa: Unlocking the Path to US Immigration

The concept of Dual Intent Visa

In general, one must always demonstrate nonimmigrant intent to qualify for a
nonimmigrant visa. Anyone applying for a nonimmigrant visa is always presumed
to be intending to immigrate. In this regard, you have to show that you have
ties to your home country and that you have no plans of permanently
immigrating to the U.S. when you apply for a nonimmigrant visa.
However, based on the doctrine of “dual intent” in immigration law,
nonimmigrant visa holder may be allowed to obtain or continue in a
particular nonimmigrant status even though steps may have been taken towards
obtaining a green card. A green card is evidence of your U.S. permanent
residence.

Benefits

A dual intent visa comes with advantages for a foreign employee, investor,
fiancé of a U.S. citizen or dependents of specific nonimmigrant visas:

  • If you’re a foreign employee, you don’t have to
    leave the country during the green card application.
  • If you’re a foreign visitor with more ties to the U.S. than your
    home country, you can avoid any questions regarding immigrant intent upon
    your arrival.
  • You can continue the process of your adjustment of status even
    if you temporarily leave the U.S.

A dual intent visa allows you to lawfully stay in the U.S. while
retaining the right to apply for a green card
in the future. Most nonimmigrant visa classifications require that
you prove ties with your home country and that you don’t
have the intent to permanently stay in the U.S. This is
why taking steps towards a permanent residence can jeopardize your stay.
Unless you hold a dual intent visa, you may be subject to a review for
immigrant intent for each visit to the U.S.

Types of Dual Intent Visa

As we have said, a dual intent visa allows foreign nationals to
enter the U.S. as a nonimmigrant, and at the same time gives
the option to apply for permanent residence
in the future. Below are examples of U.S. nonimmigrant visas
that allow dual intent for the visa holder.

H-1B Visa

The H-1B Visa is a temporary non-immigrant visa that allows a foreign
national to work in a speciality occupation. A specialty occupation can
include jobs in the sciences, engineering, technology, math, and
medicine. Take note that an employer must go through a labor certification
process before hiring a foreigner for a specific job occupation. Due
to the huge demand for this visa, U.S. employers must register for a
lottery unless they are considered exempt. This visa has an initial
3-year term that can be extended for a maximum of 6 years.

H-1B visa holders are eligible to bring their spouse and children below
21 to the U.S. They are also eligible to adjust their
status or apply for an immigrant visa based on an approved petition for
permanent residency for the H-1B visa holder.

Cost

The overall costs for the H-1B Visa depend
on the type of H-1B case and the choice of processing
with the USCIS. All cases of H-1B, including extensions
of the visa, require the USD 460 USCIS fee as well
as the OIA fee.

Application

Due to demand, there is a limited number of visas that can be issued each
year. For 2023, the visa cap is 65, 000. If you have a master’s
degree from a U.S. institution, you are eligible for the 20, 000
extra visas available for master’s degree holders or higher.
Meanwhile, the visa cap doesn’t apply to employers who are
institutions of higher education, nonprofit organizations connected to higher
education, or government research organizations.

Processing time

The processing time for an H-1B Visa can be as short as 4 months and as
long as 8 months unless you are not selected for the visa lottery.
For an additional USD 2, 500, your application can be processed within 15
working days by the USCIS through premium processing.

Requirements

The following are the requirements to qualify for an H-1B Visa:

  • You possess an advanced educational degree, such as a bachelor’s degree or
    equivalent, master’s degree, or doctoral degree.
  • You have a degree common to the industry;
  • Your employer generally requires a degree or equivalent
    for the position; and
  • The nature of your specific duties is so specialized and complex
    that the knowledge required to perform these duties is
    associated with the attainment of an advanced educational
    degree.

The requirements are different for a specialty occupation.

L-1 Visa

L1 Visas are non-immigrant visas that allow a manager, executive or a
specialized knowledge employee of a foreign company to be transferred to a
parent, subsidiary, affiliate or branch in the U.S. to perform
managerial, executive or specialized knowledge functions.

L-1 visa holders may be accompanied by their spouse and children below 21
on L-2 visas. They are also eligible to adjust status or apply for an
immigrant visa at an Embassy or Consulate based on an approved
employment-based petition for the L-1 visa holder.

Cost

The L-1 Visa comes with different costs including the USD 460
visa filing fee, the USD 500 fraud prevention and detection fee,
and the USD 205 Form DS-160 filing fee. Additional costs may occur
for dependent visas, extensions, and if you opt for premium processing.

Application

The L1 Visa application starts with the employer filing a Form
I-129 on behalf of the employee with the USCIS. Upon
approval, the visa applicant then has to complete a Form DS-160
application and attend an interview in their home country’s U.S. Embassy
or Consulate.

Processing time

The processing time for an L1 Visa depends on the USCIS service
center where the petition is filed, the U.S. Consulate or
Embassy handling the employee’s application,
and the complexity of the case. However, in general, L1
Visas tend to be processed much faster than other visa
categories. Processing can be expedited by paying an additional fee of
$2,500.

Requirements

If you’re the transferring employee, you and your employer must
prove the following requirements to qualify:

  • The qualifying relationship between the U.S. company
    and the parent company either as a subsidiary, branch, or
    affiliate;
  • The proof that you have worked full-time for the foreign
    company continuously for at least 1 year within the last 3 years
    before filing the petition; and
  • The proof that you have worked as an executive, MANAGER OR
    SPECIALIZED KNOWLEDGE employee for a foreign company and will be
    assuming the same in the U.S.

There are visa categories that are considered nonimmigrant, but inherently
recognize the intention of the visa holder to
permanently immigrate to the U.S.</strong >

K-1 Visa

A K-1 Visa is also a dual intent visa used by a foreign
fiancé to enters the U.S. and marry a U.S.
citizen. K-1 Visa applicants enter the country as nonimmigrants but
it is clear that they have the intent to marry a U.S. citizen
and generally, immigrate to the U.S. The holder of this
visa must be married within 90 days from their arrival
in the U.S. They are also not allowed to work legally
in the U.S., so they need to apply for a work permit or
adjustment of status after their marriage to work legally.

Cost

The costs for a K-1 Visa include USD 535 for Form I-129F, USD 205 for
Form DS-160, biometrics, and the medical examination.
Generally, the medical examination can go up to USD 200 but may vary
depending on the provider.

Application

The application for a K-1 Visa starts with the U.S. citizen
fiancé filing the petition Form I-129F with the USCIS.
Upon approval, the USCIS will then forward this
to the National Visa Center and you will receive a notice
from the U.S. Embassy or Consulate in their country
regarding the required documents you need to submit
and the location of the visa interview.

Processing time

The processing time for a K-1 Visa averages 6 months.
After the petition is approved, it can take 4 to 6 weeks
for the USCIS to forward the case
to the National Visa Center.

Requirements

Meanwhile, the requirements for a K-1 Visa are as follows:

  • Your sponsoring fiancé must be a U.S. citizen and not a lawful permanent
    resident;
  • Both you and your partner must be unmarried and must prove your
    relationship is valid;
  • You must prove you met in person at least once within 2 years
    before the visa application, subject to exceptions;
  • Both of you must each submit a signed document declaring you intend to get
    married within 90 days after you arrive in the U.S; and
  • The U.S. citizen fiancé must meet the income requirements for a
    K-1 Visa.

K-2 Visa

Dual intent visas like K-2 Visa, on the other hand, allow unmarried
children under the age of 21 years of K-1 Visa holders to
enter the U.S. It is approved at the same time as that
of their parent’s K-1 Visa, and should be submitted not later than a year
after their parent’s K-1 Visa was issued.

Cost and Processing Time

The processing time for a K-2 Visa is the same as a K-1 Visa
as they may be filed simultaneously. However, the cost may
differ for the K-2 Visa as some expenses are computed for each K-2
Visa applicant.

Application

The U.S. citizen sponsor will only need to submit one Form I-129F for
both the K-1 and K-2 Visa holders.

Requirements

To qualify for the visa, the child of the K-1
Visa holder must be under the age of 21 and unmarried. Further, both
fiancés must meet the criteria for eligibility for a K-1 Visa.

K-3 Visa

Dual intent visas like K-3 Visas are used by foreign spouses of U.S. citizens
to enter the country while waiting for their pending Form I-130
(Petition for Alien Relative) filed by their U.S. citizen spouse
listing them as a beneficiary. They’re allowed to work
in the U.S. without securing an Employment Authorization Document
(EAD).

Cost

The costs for a K-3 Visa include the Form I-130 filing
fee, the Form DS-160 processing fee, the medical
examination and vaccination fees, and other administrative costs that may
arise during the application.

Application

The U.S. citizen spouse must file a Form I-130 and then Form I-129F
for you with the USCIS. Upon approval, you will then receive a
notice from the U.S. Embassy or Consulate in your home country along
with instructions for the interview and documents needed.

Processing time

The processing time for a K-3 Visa can take up to 19 months on average.
Due to this, there are a lot of people who think that applying
for the visa classification is not worth it.

Requirements

To be eligible for a K-3 Visa, the applicant must
meet the following requirements:

  • You must be legally married to a U.S. citizen spouse;
  • Your U.S. citizen spouse must have filed a Form I-130 for you to
    enter the country; and
  • You are residing outside the U.S.

K-4 Visa

Meanwhile, the K-4 visa enables unmarried children
under the age of 21 years of a K-3 Visa holder to
enter the U.S. K-4 Visa holders are eligible to apply for work
in the U.S., and their visa automatically expires as soon
as they turn 21 years old.

Cost and Processing Time

The processing time for a K-4 visa is the same
as the K-3 Visa as they may be filed simultaneously.
However, the costs for a K-4 Visa may differ as some
of the expenses need to be paid for each K-4 visa applicant.

Application

The U.S. citizen fiancé only needs to submit a Form I-130 and Form I-129F
petition for their spouse and the child.

Requirements

The child of the K-3 Visa holder must be less than 21 years old
and must be unmarried. Moreover, this visa only applies
to the children of the married couple. If you’re yet to be
married, the proper visa is the K-2 Visa.

Davies & Associates can give you advice on which visa category or classification is the best for your specific needs and circumstances. If you’re curious, you can also check all the nonimmigrant visa classifications here.

Dual Intent Visa vs. Single Intent Visa

When you enter the U.S. on a temporary visa or during your visa
interview, you would need to state or prove your nonimmigrant intent. It means
that you must prove that you intend to leave the country once your
visa expires. Dual intent visas allow you to enter the U.S. to stay
or work temporarily while seeking to become lawful permanent residents.

Meanwhile, single intent visa holders are required to show that they have
no intention to abandon their residence abroad, and their intent to
only stay or work in the U.S. for the duration
of their visa. If you’re a single intent visa holder and you have
intentions to apply for a green card during your time
in the U.S., then this can indicate that you misrepresented
your intention.

Green Card Application

If you want to change from a non-immigrant status to that of a permanent
resident, you may able to do so through an “adjustment of status”
application with the United States Citizenship and Immigration
Services (USCIS).

A dual intent visa holder, generally, may file a Form I-485 without worrying
about their intent upon entry to the U.S. However, visitors who
are required to show their nonimmigrant intent upon entry must be careful
of their situation, even if holding a dual intent visa.

If you’re holding a single intent visa, filing a Form I-485 without a dual
intent visa brings into question if you have a preconceived intent
at the time your nonimmigrant visa is granted. You can’t have a
preconceived intent to enter the U.S. for purposes different from
what’s different under your nonimmigrant visa. As long as you
entered the U.S. without a preconceived intent to stay permanently,
it is possible you changed your mind at a later date or during your trip. For
example, a student may fall in love and marry a U.S. citizen
for the duration of their visa.

US Visa Application

L1 Visa Document Checklist: What You Need 

US Immigration Advisor

About the L1 Visa 

The visa type L1 is a non-immigrant visa that allows an employer to transfer an employee holding a managerial or executive position or those employed in a specialized knowledge position to a qualifying organization in the U.S. Like other visa classifications, the process of L-1 Visa involves presenting  supporting documents and a visa interview. 

There are two different types of an L1 Visa: 1) L-1A and 2) L-1B. The L1A is for employees who will work in a managerial or executive capacity at the qualifying organization in the US, while the L1B is granted to those who will be employed in a specialized knowledge position in the US. 

For both cases, you would need to have worked continuously (in a specialized knowledge or managerial or executive capacity) for at least one year within the 3 years before your application and should be seeking to assume a managerial, executive or specialized knowledge position in the US. 

Your employer would need to file a petition on your behalf with the United States Citizenship and Immigration Services (USCIS) through Form I-129 together with an L supplement. 

To help increase the chances of getting an approval, we have compiled a checklist of the supporting documents required from the foreign employer, the employee, and the U.S. company. 

In addition, the petitioner must establish that the beneficiary’s duties in the U.S meet the criteria for either specialized knowledge or managerial or executive capacity and the beneficiary engaged in either specialized knowledge or managerial or executive duties for at least 1 year 

Foreign Company Required Documents 

The following documents are required from the foreign company: 

  • Articles of Incorporation; 
  • Business License; 
  • Stock certificates and audited accounts; 
  • Business financial statements, and tax filings for the past 3 years; 
  • Evidence proving business transactions such as contracts, bills of lading, and letters of credit among others; 
  • Business promotional materials such as company brochures or product overviews; 
  • An organisational chart that includes the total number of employees and proof that the employee is holding a specialized knowledge, executive, or managerial position; 
  • Any contract or document detailing the affiliate relationship or corporate filings describing the corporate relationship; 
  • A statement from an authorised representative detailing the ownership and control of the company; and 

U.S. Company Documents 

As for the U.S. Company, here are the following documents required: 

  • Articles of Incorporation and corporate by-laws; 
  • Business license; 
  • Stock certificates and audited accounts; 
  • Business financial statements and promotional materials; 
  • A description of the business and a detailed business plan; 
  • An organisational chart that includes the total number of employees and the transferee’s position either as a specialized knowledge professional or an executive or managerial capacity; 
  • Business location lease; 
  • Bank statements or proof of initial investment 
  • Corporate tax returns, if any; 
  • Employer’s Quarterly Report Form 941, if any; and 

If you’re an employee coming to the country to set up a new U.S. office, you would need to submit evidence of the establishment of the new office such as an office space lease, contracts, and copies of applicable business permits. 

Blanket L Petition Requirements 

Foreign employers who regularly send employees abroad as transfers may opt to do a blanket petition which allows them to apply for multiple employees for the L1 status under a single approved petition, rather than file individual petitions with the USCIS. To be qualified, the employer must meet the following requirements: 

  • The petitioner and each of the entities included are engaged in commercial trade or services; 
  • The petitioner has an office in the United States that has been doing business for 1 year or more; 
  • The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and 
  • The petitioner and the other qualifying organizations have obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees. 
  • If your employer doesn’t have the qualifications above, then they are not eligible for blanket petitions and would need to file individual petitions for each transferring employee. The employer must also prove the following requirements of L1 Visa through supporting documents: 
  • The qualifying relationship between the U.S. company and the parent company either as a subsidiary, branch, or affiliate among others; 
  • The proof that you have worked full-time for the foreign company continuously for at least 1 year within the last 3 years before filing the petition; and 
  • The proof that you have worked as a specialized knowledge, manager or executive employee for a foreign company and will be assuming the same in the U.S. 

Canadians with an approved blanket petition seeking an L-1 classification may present the completed Form I-129S and other supporting documents to a U.S. Customs and Border Protection (CBP) Officer at certain ports of entry at the U.S.-Canada land border or a U.S. pre-clearance or pre-flight inspection station in Canada. 

Transferring Employee Documents 

Once the USCIS approves the petition, your employer will be given an approval notice by way of  Form I-797. You would then need to submit your Form DS-160 (Online Nonimmigrant Visa Application). After that, you would need to schedule an interview with your home country’s U.S. Embassy or Consulate where you would need to submit the following documents: 

  • The visa interview appointment letter; 
  • The confirmation page of your Form DS-160; 
  • A copy of Form DS-160 and L supplement; 
  • The Form DS-160 application fee receipt; 
  • The receipt number of the Form I-129 petition along with a physical copy; 
  • A passport with a validity 6 months beyond the expiration of the L1 nonimmigrant status; 
  • Your resume or curriculum vitae; 
  • Two recent passport-size coloured photographs; 
  • A copy of the Form I-129 petition submitted to the USCIS; 
  • The Form I-797 petition approval from the USCIS; 
  • Records or certificates of educational training or degrees; 
  • Payment statements and income tax records; 
  • Job duties and description; 
  • An organisational chart that shows your position; 
  • Reference letters from your supervisors, colleagues, or from your previous employers indicating your employment history, experience and work skills; 
  • An employment authorization or verification letter from your employer; 
  • The board resolution or appointment documents that verify your transfer; 
  • Any other documents that prove your capability to conduct business in a managerial or executive capacity or any proof that you possess a specialized knowledge position. 

Please take note that sometimes, they will require a reciprocity fee depending on your nationality. The visa application necessarily includes different costs of L1 Visa and filing the correct fees is crucial, so it’s important to take note of it during your application. 

Risks of an L1 Visa Document Checklist 

Having an approved L-1 petition nor submitting all the supporting documents above, doesn’t guarantee visa issuance. The consular officer will determine if you’re qualified based on the documents on all documents and information submitted as well as your answers during the interview 

Please take note that the checklists above are not exhaustive Davies & Associates has a team of experienced L1 visa attorneys who can give you advice and help on which relevant documents you will need to submit depending on your circumstances. 

If the information you have provided is incomplete, your visa application may be needlessly delayed if not denied. Consular officers may ask for further information and documents before making the final decision on your application. 

Moreover, even though you have submitted complete supporting documents, you will still need to be interviewed by the consular officer. The interview will focus on more detailed questions relating to your employer, the U.S. company and your capacity or job duties. 

For those applying for an L-1B Visa, the questions will focus on how their specialized knowledge is crucial to the overall functions of the business. 

You can increase your chances of getting your visa approved by ensuring that all the relevant documents are correct and by answering interview questions honestly, openly and as articulately as possible. 

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

Biometric USCIS

Biden’s New Executive Order Could Make Immigration Faster 

US Immigration Advisor

President Biden issued an Executive Order on October 30 in a bid to promote innovation and attract artificial intelligence (AI) talent to the shores of America. The “Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence” provides new guidelines to protect the privacy of citizens and safeguard US national security.   

The EO also seeks to attract foreign talent from around the globe in the AI space to balance the needs of technology companies in this dynamic AI age. More specifically, the EO seeks to streamline processing times of visa petitions and applications, including by ensuring timely availability of visa appointments for the purposes of work, study, or research in AI or other critical and emerging technologies. The EO directs the relevant government agencies to consider implementing a domestic visa renewal program so that AI skilled employees can continue working without interruption. Furthermore, the EO calls for the establishment of a program to identify and attract top AI talent and for the review and initiation of policy changes to immigration pathways (e.g., O-1A, EB-1, EB-2) for experts in AI and critical and emerging technologies. 

These immigration- specific directives in the EO highlight the Biden administration’s objective to attract and retain foreign talent in the AI and critical emerging technology space in order for America to stay at the forefront.  The measures set forth in the EO, if put into action could make certain areas of immigration more efficient.  Visas such as the H1-B, O-1, F1, and Green Cards could be obtained faster by professionals in the AI and critical and emerging technology fields.  There could also be a possibility of modification of the rules of the EB-1 (B) and EB-2 categories to prioritize AI workers. 

D&A will continue to monitor policies and proposals on immigration and provide updates as and when available. 

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Immigration attorney

Non-Immigrant Visa USA: Your Gateway to the United States

US Immigration Advisor

Non-immigrant Visa

A non-immigrant visa is for individuals who want to visit, live or work in the United States temporarily. For example, if you’re visiting the U.S. for a vacation or a business conference, then you would need a non-immigrant visa.

On the other hand, an immigrant visa is for individuals who want to permanently move to the U.S. and obtain their green card.

Non-immigrant visa categories include the H-1B, L, J-1 and E-2 and F-1

Process for Temporary Work Visa

There are different federal government agencies involved in reviewing and approving visa applications or petitions for temporary worker visas such as the US Department of Labor, Department of State and the Department of Homeland Security. In some cases, the prospective employer would have to first obtain certification from the DOL and then file a petition with the USCIS (United States Citizenship and Immigration Services) at DHS and after obtaining their approval, the candidate will apply for visa stamping at the US consulate rIn some cases, the prospective employee can apply for a visa directly at the US consulate.

The specific visa category will determine the various steps in the application process.  

Types of Temporary Worker Visa

There are different temporary worker visa categories available which you can choose depending on the purpose of your visit and eligibility criteria. We’ve rounded them up below with brief descriptions so you can get acquainted.

CW-1

The CW-1 is a visa exclusively for employers in the Commonwealth of the Northern Mariana Islands (CNMI), where they can apply to employ foreign workers who don’t fit into other employment categories.

E-1

An E-1 Visa is a nonimmigrant classification that allows a national of a treaty country to carry substantial trade and principal trade between the U.S. and their home country. Treaty countries maintain a treaty of commerce and navigation with the U.S., or with which the U.S. maintains a qualifying international agreement, or which has been designated as qualified by law.

E-2

An E-2 Visa is a non-immigrant visa that is granted to a national of a treaty country to make a substantial investment in a U.S. enterprise or business. The definition of a treaty country, in this case, is the same as that of an E-1 Visa.

E-2 CNMI

An E-2C Visa, on the other hand, allows long-term foreign investors to remain in the CNMI through December 31, 2029, while they resolve their immigration status. This visa helps while the CNMI transitions from the CNMI permit system to the U.S. immigration laws.

E-3

An E-3 Visa is a special work visa exclusively given to residents of Australia working in specialty occupations in the U.S. Moreover, their spouse and unmarried children under the age of 21 years may also qualify, even if they are not Australian themselves.

H-1B

An H1-B Visa is reserved for those who will undertake a role with a U.S. employer in a specialty occupation or profession that requires certain minimum education.

H-2A

An H-2A Visa is given to a temporary agricultural worker from certain countries. It’s typically used by foreign agricultural workers who have a job offer from a U.S. company and U.S. companies hiring foreign workers for temporary or seasonal agricultural work.

H-2B

Meanwhile, an H-2B visa is for employers to hire a temporary non-agricultural worker. The employment, in this case, must be temporary as such it’s only for a limited period, seasonal need, or intermittent need.

H-3

An H-3 Visa allows foreign nations to enter the United States either as: 1) a Trainee, to receive training in any field of endeavour other than graduate medical education or training, and 2) a Special Education Exchange Visitor, to participate in a program that provides for practical training and experience in the education of children with special needs.

I

This visa is a type from different non-immigrant visa classifications granted to journalists visiting the United States for work or educational opportunities. It is exclusively for representatives of foreign media across different mediums such as press, film or print.

L

The L Visas is commonly referred to as intra-company transfer visa where an employee of a multinational company is temporarily transferred to a U.S. branch, affiliate, parent or subsidiary of the same company. Under the L1 Transfer Visa, the employee holding a managerial or executive capacity or a specialized knowledge position must also work in a similar capacity in the U.S. office.

O

The O Visa is for individuals with a unique or extraordinary ability in science, arts, education, business, or athletics who wish to temporarily work in their field of expertise in the U.S. Under this visa, the individual must prove that they offer essential services in their field of expertise that can’t be provided by a U.S. citizen.

P-1A

A P-1A Visa is granted to internationally recognized athletes or athletic teams coming to the U.S. to perform at a specific athletic competition. It can be granted to professional or amateur athletes to perform in specific theatrical ice skating productions or tours, either individually or as a part of a group.

P-1B

The P-1V Visa, on the other hand, is given to you if you are coming to the U.S. temporarily as part of an entertainment group that has been established for a minimum of a year and has been recognized internationally as outstanding for a sustained and substantial period.

P-2

The P-2 Visa is a type from the different nonimmigrant visa classifications that is granted if you are coming to the U.S. to perform as an entertainer or artist under a reciprocal exchange program between a U.S. organization and an organization in your home country, either individually or as part of a group.

P-3

The P-3 Visa is a visa classification that’s granted if you’re coming to the U.S. temporarily to perform, teach, or coach as artists or entertainers under a culturally unique program, either individually or as a group.

Q-1

The Q-1 Visa is granted to individuals visiting the U.S. to take part in an international cultural exchange program where they will share their history, culture, and tradition. It is to provide practical training and employment.

R-1

The R-1 Visa is for foreign nationals coming to the U.S. to be employed temporarily as a minister or in another religious occupation for a minimum of 20 hours per week on average.

TN

The TN visa is a visa classification that permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage at a professional level in business activities.

You can click here to check a summary of these temporary worker visas.

Non-immigrant Work Visa Options

There are three different non-immigrant temporary work visa categories:

  • Temporary work visas such as the H-1B, E-2, L-1. Before applying for a majority of these visas, first, there must be an approved petition filed by the prospective employer with the (USCIS.
  • Work under an Employment Authorization Document (EAD).  This option allows certain eligible non immigrant visa holders including L-2, H-4 (spouses of principal L-1 and H-1B respectively) and individuals awaiting adjudication of their I-485 to apply for the EAD and lawfully work in the US after approval of such application.
  • Work in the U.S. with a NAFTA visa. In this category, only citizens of Canada and Mexico are eligible, granting them temporary entry into the U.S. for business at a professional level.

Application for a U.S. Nonimmigrant Visa

Individuals who wish to apply for a visa under the temporary worker categories at the US consulate will first need to fill out a Form DS-160 (Online Non-Immigrant Visa Application). Depending on the requirements of their chosen visa, they might need additional information and forms.

After completing your Form DS-160, you will receive a barcode which you will need to print and keep for your upcoming appointment at the U.S. embassy. You can schedule your visa interview once you already have your barcode.

Immigrant Visas vs Nonimmigrant Visas

A foreign national can enter the United States based on a  a valid and unexpired visa, either a nonimmigrant or an immigrant visa.

A nonimmigrant visa is only granted for a limited time, although in most cases, you can extend this visa as long as you meet all the requirements throughout your stay in the U.S.

On the other hand, immigrant visas allow you to live and work in the U.S. permanently and indefinitely. However, take note that immigrant visas don’t grant you the same rights as that of a U.S. citizen.

If you’re unsure of which visa category applies to your goals and circumstances, the experienced team of lawyers at Davies & Associates can help you navigate, strategize and  determine which visa best fits your needs

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

US Visa Application

L-1 Filed by Sole Proprietorships

US Immigration Advisor

The United States Citizenship and Immigration Services (USCIS) affirmed on October 20 via their Policy Alert (PA-2023-29), that a sole proprietorship cannot file an L-1 visa petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity, separate from the owner. A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in the individual’s personal capacity.

The L-1 intracompany transferee visa is a popular visa category utilized for the transfer of certain managerial, executive and specialized knowledge personnel from a foreign business to a related US business.

Existing USCIS policy provides that a sole proprietorship may not file an L-1 petition on behalf of its owner because there must be a separation between the employing entity and the beneficiary; a petition where the sole-proprietor owner and beneficiary are the same would be considered an impermissible self-petition. However, an L-1 can be filed by a sole proprietorship on behalf an eligible employee. For instance, an individual may be the sole proprietor of an entity abroad and also of one in the United States, and may transfer an eligible employee under the L-1A or L-1B classification to the US.

The Policy Alert further affirms the difference between a sole proprietorship and a self-incorporated petitioner (i.e., a corporation or a limited liability company with a single owner) in that the corporation or the single-member LLC is a separate and distinct legal entity from its owner, stockholder or member (unlike a sole preceptorship) and can therefore file an L-1 for that owner.

This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.

UK Visa Immigration

E2 Visa for UK nationals

US Immigration Advisor

Are you a UK national looking to start a business in the United States? If so, you may be eligible for an E2 visa. In this article, we will discuss the E2 visa for UK nationals, its requirements, and how to apply for it.

What is an E2 Visa?

An E2 visa is a non-immigrant visa that allows foreign nationals to enter and work in the United States based on a substantial investment in a US business. This visa is only available to citizens of countries that have a treaty of commerce and navigation with the United States, and the United Kingdom is one of them.

Benefits of an E2 Visa

The E2 visa offers several benefits to UK nationals looking to start a business in the US. These include:

  • The ability to come in and out of the U.S. on the valid E-2 visa for 5 years to develop and direct your E-2 company.
  • The ability live and work in the US for a full two-year period for every entry on the valid visa, with the option to renew the visa indefinitely.
  • The ability to bring dependents, including spouses and unmarried children under 21, to the US.
  • No minimum education or language requirements.
  • No annual quota or cap on the number of E2 visas issued, which means that there is no significant wait time to obtain the E-2 visa as compared to other visa classifications.

Requirements for UK Nationals

To be eligible for an E2 visa, UK nationals must meet the following requirements:

  • Be a citizen AND an ongoing resident* of the United Kingdom
  • Have invested or be in the process of investing a substantial amount of capital in a US business
  • Have at least 50% ownership of the US business
  • Be seeking to enter the US solely to develop and direct the US business
  • The investment must be in an active and operating business, not a passive investment such as real estate or stocks
  • The investment must be at risk, meaning there is a risk of losing the investment if the business fails
  • The investment must be substantial, meaning it must be enough to ensure the success of the business
  • The business must have the potential to create job opportunities for US workers
  • The business must be a legitimate enterprise, not a marginal one

*The treaty with the UK specifically requires the principal applicant to prove ongoing residency in the U.K. Examples of the appropriate evidence which must be issued within the last 6 months maximum are a recent copy of a pay slips/stubs or proof of payment for Inland Revenue taxes in the UK. Other examples are proof ofpayment of local utilities bills such as gas, water, electric, local council taxes; a current lease or mortgage payment should be accompanied by other proof such as bank statements for a current account reflecting local direct debit charges or transactions are all acceptable proof of domicile.

Investment Amount

The investment amount required for an E2 visa varies depending on the type of business and its location. However, the investment must be substantial and sufficient to ensure the success of the business. Generally, the investment amount should be at least $100,000, but it can be lower for certain businesses. The investment can be made in a start-up company, an existing/operating company or a franchise.

Ownership Percentage

To qualify for an E2 visa, UK nationals must have at least 50% ownership of the US business. This means that they must have a controlling interest in the business and have the power to make decisions and direct the operations of the business.

Developing and Directing the Business

UK nationals must be seeking to enter the US solely to develop and direct the US business. This means that they must have a key role in the business and be actively involved in its day-to-day operations. They must also have the necessary skills and experience to successfully run the business.

Job Creation

One of the requirements for an E2 visa is that the business must have the potential to create job opportunities for US workers. While there is no specific number of jobs that must be created, the business must have the capacity to generate enough revenue to support the creation of jobs.

Marginal Enterprises

A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the investor and their family. To qualify for an E2 visa, the business must not be a marginal one.

How to Apply for an E2 Visa

To apply for an E2 visa, UK nationals must follow these steps:

1. Complete the online non-immigrant visa application (Form DS-160)

2. Pay the visa application fee

3. Gather the required documents and submit the application package based on the Embassy guidelines. Some required documents are the following:

  • A valid passport
  • A business plan outlining the investment and business operations
  • Proof of investment, such as bank statements or loan agreements
  • Proof of ownership, such as stock certificates or partnership agreements
  • Evidence of the business’s potential to create jobs, such as a business plan or financial projections
  • Evidence of the business’s legitimacy, such as business licenses or tax returns
  • Evidence of the investor’s qualifications and experience, such as resumes or educational certificates

4. Schedule an interview at the US Embassy in London

5. Attend the visa interview and answer the questions from the visa officer

6. If approved, the visa will be issued and the investor can enter the US to develop and direct the business

Conclusion

The E2 visa is an excellent option for UK nationals looking to start a business in the United States. It should be noted that you may also buy an operating business or acquire a franchise. It offers several benefits, making it accessible to a wide range of investors. By meeting the requirements and following the application process, UK nationals can successfully obtain an E2 visa and start their business in the US.

This article has been written by Alex Jovy, Head of Business Development Davies & Associates, London Office.

Alex Jovy  heads sales & business development in the UK and Europe. Alex has a long history of senior management roles in a wide range of sectors, from sustainability to film and has worked in a variety of sales, marketing and business development roles in a range of law and professional services firms. Alex has a passion for film and was nominated for an Academy Award. He is a published author with a successful historical fiction book about Cyrus the Great.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.